Child Custody or Parental Power Under Thai Family Law
Child Custody or Parental Power Under Thai Family Law
Child Custody or Parental Power is the right to organize, manage, control or take care of children whose age are lower than 20 years old.
Because under Civil and Commercial Code of Thailand, section 19 stated that: “A person, on the completion of twenty years of age ceases to be a minor and become sui juris”.
So, while the marriage still lasts, the right of custody or parental power still belongs to both the husband and the wife.
You can also see the general meaning from here as well: General Meaning.
However, once the marriage ends up by divorce and they have a minor child whose age is lower than 20 years old, the child must have one or both parties to look after them until they reach the legal age (sui juris).
Because as a minor they cannot make a big decision by themselves. They can only make simple decisions such as buying food, buy a bus ticket, etc.
In short, when the relationship between the husband and wife has ended, but the relationship between father and child, or between mother and child still last until the last day of their life.
In this article, we will talk about Child Custody or Parental Power after divorce in Thailand. And, we will guide you on how the Thai Family Court consider and decide who should be the custodian person of the child when the case comes to the court for consideration.
Before drive thru the information of Child Custody, we also suggest you to read the information on Divorce to understand how process will be as well: Divorce in Thailand
1. Child Custody or Parental Power in case of Uncontested Divorce (Divorce by mutual consent)
First of all, you need to understand that Thai Law allows both parties to register divorce at the District Office. It is different from some country because in some countries the divorce must be filed at the court. So, in case the parties have a child who’s under 20 years of age, they can agree in writing on the registration of divorce time who shall behold the right of Child Custody or Parental Power after divorce.
The Civil and Commercial Code section 1520 first paragraph stated that:
“In case of divorce by mutual consent, the spouses shall make an agreement in writing for the exercise of parental power over each of the children. In the absence of such agreement or an agreement thereon cannot be reached, the matter shall be decided by the Court”.
So, you can put in writing in the Divorce Agreement about who will have the right of the Child Custody or Parental Power over the child after the registration of divorce.
Please highly note that it is a must to specify and clearly state under the Divorce Agreement regarding who will be the “Custodian of the child”.
Because if you just put the term such as “…after the divorce, the Male Party will take care of the child…”, this statement is not clear as to who is the custodian. In this case, the Child Custodian will remain with both parties (a reference to Supreme Court Decree no 2565/2536).
In case such matter has not been specified or cannot agree, you must bring this matter to the Court to make a decision again.
From hereinafter, we will bring provide the information on how the Thai Family court considers making an order of who should be the custodian of the minor child.
2. Child Custody or Parental Power in case of Contested Divorce (Divorce by court order)
In case of Contested Divorce or the parties have issue in regard with the Custodian of the minor child after divorce, the court must make decision who should be the Custodian of the minor child.
First of all, the main law that the Thai Family Court will use for implementation is the Civil and Commercial Code Section 1520 Paragraph two:
“In case of divorce by judgment of the Court, the Court trying the divorce case shall also order that the parental power over each of the children belongs to any party. If, in such trial, it is deemed proper to deprive that spouse of the parental power under Section 1582, the Court may give an order depriving that spouse of the same and appointing a third person as a guardian, by taking into consideration the happiness and interest of the child.”
The principle that the Thai Family Court use for consideration is “the happiness and welfare of the child as the first and paramount consideration”
By consideration that it has 8 factors that the Thai Family Court will consider for Child Custody or Parental Power.
Factor 1: Young Children need mother.
If the minor child is still quite young, the Thai Family Court usually let mother to have Child Custody or Parental Power in case of Contested Divorce.
Because the baby need the mother to breast-feed.
And mother has more dedication and subtlety. This is what the court will consider in order to give the custodian of the child.
Also, if the child is a girl, the court will let the mother to have the right of custodian over the child as well.
And if the child is a boy, the court usually let father to take care of the child.
Please be note that Thai Family Court will not consider who is richer to make the decision on who should have the Child Custody or Parental Power.
Factor 2: Continuation of care for Child Custody or Parental Power
Normally, the court will not move the minor child from his or her current residence. Unless, there is a necessary reason such as one party was imprisoned, alcoholism, etc. which may cause shame or problem to the child in the eyes of the public. The court can consider to move the child and let the other party have the right on Child Custody or Parental Power.
- The child living with mother around 8 years.
- The mother is a rice famer and received less income.
- The father is engineer in Japan and have more stable income.
In this case the Thai Court ordered to let the mother have the continuation of care to the minor child.
Factor 3: Keeping the Children together
As the family is broken, the court will not separate siblings. Because they can support each other during family unstable time and keep their better mental.
Factor 4: Wishes and feelings of the child
The court can ask for the minor child regarding their wish and what they feel, to whom they would like to stay.
Normally, the child should be more than 8 years old.
If the child is more than 14 years old, the decision of the child must be followed.
So, if the child is quite young, the court will not pay intention to their statement or decision.
Factor 5: Ability to provide better education for academic, profession, religion, moral and intellectual development to the minor child at school and at home.
The court will consider which party has more capability to provide such education to minor child.
The party who has bad behavior like drug addict, alcoholism, gambling addict, ruffian etc., most likely the court will consider that he/she doesn’t have the ability to provide good education to the minor child.
- The Defendant always be suspicious that the Plaintiff adultery.
- The Defendant beat the Plaintiff and always drink beer.
In this case, the court ordered to let the Plaintiff have the sole custodian of the minor child.
Factor 6: Ability to provide accommodation, food, clothes and medical care to the minor child.
If the child is still young and needs support from the custodian party, the court will consider with who has more time and who can support the minor child for accommodation, food, clothes and medical care to the minor child. And will let that party to have right of custodian of the child moving forward.
Because the court will consider that this party pays attention and care to the minor.
- The mother goes out to work and leave the minor child with the grandparents. And leave the minor child hungry, wear dirty clothes, and has no time to take care of the child.
- The father is working with government and has sufficient and stable income and the father deposits money to the minor child ‘s bank account for their savings.
In this case, the court order will let the father to have the right on custodian over the minor child.
Factor 7: Existing Environment
The Court will consider the period of time that the minor child has lived in such area and also consider the effect if there will be a change of the environment around the minor child. That includes changing of school, friends at school, neighborhood friends and visitation of relatives.
If the minor child is happy with the existing school and environment, the court will not change it.
Factor 8: Love, affection, and emotion between the minor child and each party.
The court need to consider the story from the previous relationship who used to take care of the minor with love and affection and wish the minor child to growing up with the good person.
If it appears that one party treats the child with emotional or physical abuse, and always abuses the right of the child, the court will not let this person to have the right of custodian over the child.
3. Does difference in religion affect the right of Child Custody?
In case each party has different religion, the Thai Family Court will not consider such matter in making the decision on the custody of the child. Unless, it affects the happiness and welfare of the child.
Because our culture believes that all religions have the same intention to teach people to be good a person.
So, no matter what the religion of the party believes or what the religion that the minor child will be respected. It will not be a basis of the court’s decision.
4. Child Custody can be changed by challenge to Thai Family Court
Even if one party has sole custody or both parties have joint custody, the court can change the custodian person anytime if it appears to the court that the fact/circumstance has already changed and caused tremendous effect to the minor child.
The referral is Civil and Commercial Court Section 1521:
“If it appears that the person exercising parental power of the guardian under Section 1520 behaves himself or herself improperly or there is a change of circumstance after the appointment, the Court has the power to give an order appointing a new guardian by taking into consideration the happiness and interest of the child”.
This Section is implemented for both scenarios of “Uncontested Divorce” that the Parties have mutually agree about who is the Custodian Person of the child and also for the case of “Contested Divorce” that the Court has ordered on right of custodian as well.
For the request of changing the Child Custody, one party needs to file the Plaint or Petition to court with the description or reason on how it will benefit the child if the court agreed with your request.
Please highly note that both parties cannot agree on custodian matter without court order. You must get the court order only.
5. Our Legal Service on Child Custody matter
The most important factor that spouses must consider before Divorce is the child custody matter. Because the Marital Property can be divided, but the child cannot.
This is especially when the spouses has different nationalities. Because one of them may need to live outside of Thailand and intends to bring the child back to that country of which the other party does not agree.
This issue always ends up at the court for consideration and making decision.
As we have been practicing in this area for several years and have visited the Thai Family Court in almost every province across Thailand, we are well-verse and well informed about how the Thai Family Court perceives such matter and issue.
Divorce is not a rare case scenario in Thailand as well. We receive at least 5 inquiries regarding divorce every day. So, rest assured that we are knowledgeable about the divorce in Thailand, all the procedure and the perception of the court about this matter.
Child Custody is the real problem when it comes to spouses looking forward to Divorce. If both parties cannot decide regarding the custody of the child then they have to let the court make the decision.
Divorce is not a “walk in the park” or a “stroll on the beach” type of process, sometimes it is but sometimes it is more of like a battlefield, you cannot avoid the pain and one party will get hurt.
Spouses who will Divorce must always consider the well-being of their children, they must prioritize the happiness of the children. Because at the end of the day it’s the children that will suffer the most.
Our advice is to consult with a Family Lawyer if you are planning to go through Divorce. It is best to leave it to the experts to guarantee that you follow the procedure accordingly and to avoid wasting your time, money, and effort.
We would like to remind our readers that all matters takes time, whether it is divorce, or love, we must always consider what is important and what will the affected people will feel when you make such decision.
Siam Attorney has been in the field for a long time, we value your feelings and we make sure that the process will always consider you and your loved ones happiness.
Lastly, the happiness and welfare of the child is the answer who will hold Child Custody.